A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Friday, 25 March 2016

The Yugoslavia Tribunal also Engages in Debt Collection

Alongside yesterday’s very important judgment of the
International Criminal Tribunal for the former Yugoslavia was a rather more
pathetic manifestation of the fight against impunity. While the judgment was
being issued, Security officials of the Tribunal, with the apparent assistance
of the Dutch police, arrested French journalist Florence Hartmann. She is now
in detention at the Tribunal’s prison. For a photo of her arrest, look here.

Florence Hartmann served as press officer at the Tribunal
about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book
referred to decisions of the Tribunal’s Appeals Chamber that were supposed to
have remained confidential. After being tried and convicted of contempt of
court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the
sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.

All of the international tribunals have wasted a lot of
resources on prosecuting so-called ‘offences against the administration of
justice’. The time and money these matters have consumed could have been
usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.

It doesn't have to be this way. In the early 1990s, the International
Law Commission conceived of an international court that would not concern
itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence
Hartmann, or the others, really committed an offence against the administration
of justice, it would make a lot more sense for them to be dealt with by domestic justice systems.

If this were the case, by the way, the door would be wide open
to the European Court of Human Rights. It could address the human rights issues
that arise including arbitrary detention, imprisonment for debt, and freedom of
expression. But the International Criminal Tribunal for the former Yugoslavia
lives in a little glass bubble where it is immune from supervision by the
European Court of Human Rights.

Florence Hartmann’s arrest did not, apparently, take place
on the territory of the Tribunal, but well outside its gates. Can it really be
the case that United Nations security guards have the legal authority to arrest
individuals on Dutch territory outside the premises of the Tribunal?

The Security Council resolution establishing the Tribunal
gives it jurisdiction over ‘serious violations of international humanitarian
law’. Publishing a book in France does not fit within this concept. That may
explain why France has refused requests from the Tribunal to arrest Florence
Hartman for non-payment of the €7,000
fine.

Nobody
should be put in prison for failure to pay a fine. This amounts to arbitrary detention.
If the offence merits a jail sentence, then impose one from the beginning. But if it only justifies a fine of a relatively modest amount, it should not then be converted into jail time for non-payment, If the Tribunal wants to collect the money, let it file a civil claim before a
national court and attempt to seize the money from the bank account of its
debtor. That’s what the rest of us have to do when we are owed money.

3 comments:

It is also interesting that the ICTY Appeals Chamber holds that interference in the administration of justice can occur without "any actual interference t[aking] place": "When a court order has been violated, the Trial Chamber does not need to assess whether any actual interference took place or whether a real risk to the administration of justice has taken place because such a violation per se interferes with the administration of justice. The Appeals Chamber in the Jović case held that 'the language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice.' Thus, 'no additional proof of harm to the International Tribunal’s administration of justice is required.'" (In the Case against Florence Hartmann [IT-02-54-R77.5-A], Appeals Chamber Judgement, 19 July 2011, para. 107.)

Historically, when workplace misconduct arose, employees would either deny, admit or defend their role in a particular event. A disciplinary investigation took place and the employer would then make a decision concerning what, if any, disciplinary action would be imposed, depending on all the circumstances.

Hartmann was a senior official of the UN, had been employed thus for 6 years, and knew the relevant law and the reasons why her employers wished to protect confidential decisions made by judges. The reasons in this case were the continued operation of the tribunal by means of state cooperation, which cooperation was placed in jeopardy by her two publications. The functioning of this and any other tribunal, depending as these courts do on state cooperation to arrest accused persons, find evidence for both parties, and entry into states to conduct investigations, are in issue. Rule 77(G) RPE allows a court to impose imprisonment for 7 years, a fine of up to 100,000 Euros, or both. There is no provision allowing the court, after imposing a fine, to treat it as a civil debt upon non-payment, and it is difficult to see why such a procedure would be efficient or justifiable. Non-payment of a fine when payment is possible is specifically made a possible further contempt. In this case, Hartmann [who had been treated as indigent and had collected enormous value in free legal services] chose to play a silly game of showing that the money donated by her supporters to pay the fine was waiting in France if the tribunal wanted to come and get it. Specifically, she refused to obey the court’s express instructions on how the money should have been paid over. She would not have been treated so leniently by any national court. As to the arrest by the Dutch, it was expressly requested by the court in the original decision altering the fine to a prison sentence. Your remarks about the tribunals wasting time over contempt proceedings are, with a few exceptions that come to mind, not accurate. The ICTY has been subjected to a continuous process of attempts to pervert the course of justice. It hardly would attract much credit if it ignored the bad behaviour of its own ex-staff. At the root of all these cases is the need to protect not only an abstract idea of the course of justice but the actual needs of the victims of crimes, and the safety of witnesses who come to make the process work. The ICTR had a much easier experience in regard to contempt by participants [its first contempt appeals case was dated 2010]. But state cooperation is still a critical issue for both tribunals and it was that which Hartmann chose to put at risk. So, she was very lucky to be treated so gently. And the idea that a justice system which is experiencing an attack on its fundamental ability to function should be asked to line up with ordinary civil debtors is misconceived.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.